j"''^. 





























.V^ 













2 •<"% 






^ 
V 








(K 



a 



%'^ 



/ 



p O^bjnJt o--tXc't-t_ 



EXTENSION 



TPIE GOODYEAR PATENT. 



DECISION OF THE COMMISSIONER. 



J-^ 






United States Patent Office, 

June 14, 1858. 

In tlie matter of the application of Charles 
Goodyear, for the extension of a patent 
granted to him for ' ' improvement in India 
rubberfabrics,''onthe 15th day of June, 1844, 
and which was reissued in two separate 
patents on the 25th day of December, 1849, 
under the designations of ' ' improvement in 
processes for the manufacture of India rub- 
ber ' ' and ' ' improvement in felting India 
rubber with cotton fibre." 

It appears that on the 30th January, 1844, 
the applicant, through Iris agent, (Newton,) 
obtained from the English government a 
patent for this invention or discovery, known 
in popular parlance as a "process for vul- 
canizing India rubber," and, on the 15th of 
Jime thereafter, the patent now sought to 
be extended was issued from this office. It 
is assumed and insisted by the contestants 
that tlie American patent sliould have borne 
even date with the English, and that, in 
law, it expired with it on the 30th January 
last ; and, in consequence, it is denied that 
the Commissioner has any authority to enter- 
tain a petition for its renewal. What shall 
be the date and duration of a patent, is a 
question which must be decided by tliis 
of&ce on each original application ; and in 
the case under consideration it was deter- 
mined that it should bear date the 15 th 
June, 1844, and should secure a monopoly 
of the invention for fourteen years there- 
after. If this was irregular, in view of the 
English patent, it did not render that issued 
by this office void, as was held by the Su- 
preme Court in 15 Howard, 112, O'Reilly et 
al. vs. Morse et al. Being at most voidable, 
it would seem that it should be treated as 
valid until vacated by the judgment of some 



judicial tribunal. At all events, whatever 
may be the power of the courts OA^er the in- 
strument, it is not believed to be competent 
for the Commissioner in a summary, and in 
some respects a collateral proceeding like 
this, to revise and reverse a former decision 
of this office, under which so many rights 
have been vested. Were his power, how- 
ever, plenary in the matter, I should not 
hesitate to hold that the provisions of law 
cited do not sustain this objection, which has 
been taken in the nature of a plea to the ju- 
risdiction. The 8th section of the act of 
1836, and the 6th section of that of 1839, 
being in pari materia, must be construed to- 
gether ; and as the latter is not, in its terms, 
a repeal of the former, it can, according to 
a well-settled principle of construction, be 
allowed to have that effect only so far as the 
provisions of the two are clearly incompati- 
ble. The statute of 1836 declares that 
nothing therein contained " shall be con- 
strued to deprive an original and true in- 
ventor of the right to a patent for his inven- 
tion by reason of his having previously 
taken out letters patent therefor in a foreign 
country, and the same having been published, 
at any time within six months next preceding the 
filing of his specification and drawings. And, 
whenever the applicant shall request it, the patent 
shall take date from the filing of the specifi- 
cation and drawings ; not, however, exceed- 
ing six months prior to the actual issuing of 
the patent." It is sufficiently clear that 
this clause applies only to those cases in 
which the foreign patent has been issued be- 
fore, but within six months of the filing of 
the specification and drawings. A reference 
to the record, however, shows that the spe- 
cification and drawings in this case were filed 
on the 15th of January, 1844, so that the 
foreign patent, instead of having been taken 



^ 



2 



^4"^^ . 

^^'■"n-^^ 



.\j^ 



out before, as contemplated by the act, was 
in fact taken out fifteen days afler the filing 
of the specification and drawings in this 
ofiice. This would seem to relieve the case 
entirely from the operation of the provision. 
But should it be treated as subject to it, as 
the American patent was issued four and a 
half months after the publication of the 
English, the most that could be claimed 
would be, that the applicant might, "on re- 
^mest," have had his patent ante-dated, so 
as to have reached back to the filing of his 
specification and drawings, but he was not bound 
to do so. It is manifestly a privilege bestowed , 
and not a duty imposed upon him. He did 
not choose to avail himself of that privilege ; 
and hence the patent went oat, properly 
bearing its actual date. The act of 1839 
asserts that ".no person shall be debarred 
from receiving a patent for any invention or 
discovery, as provided in the act approved 
on the 4th of July, 1836, to which this is 
additional, by reason of the same having 
been patented in a foreign country more than 
six months prior to his application: Provided, 
That the same shall not have been introduced 
into public and common use in the United 
States prior to the application for such patent : 
And provided, also. That in all cases every such 
patent shall be limited to the term of four- 
teen years from the date or publication of 
such letters patent. ' ' It will be perceived 
that this provision is confined expressly to 
an invention or discovery for which letters 
patent shall have been taken out in a foreign 
country more than six months prior to the 
filing of the application here, and declares 
such invention or discovery patentable under 
limitations. The act of 1836 referred to this 
class of cases, and, in effect, treated them as 
unpatentable. To this ex'ent it is repealed by 
the act of 1839, because irreconcilable icith it. 
But the act of J 836 refers to another and 
'very distinct class of cases, in which the for- 
■>eign letters patent ivere not published more than 
six months before the date of the application here, 
and declares them patentable. To this lat- 
ter class no allusion is made by the act of 
1839 ; and as this act is, in this respect, in 
no degree inconsistent with that of 1836, 
and as it professes to be not abrogatory of, 
but "additional" to it, it must, upon the 
soimdest principles of interpretation, be held 
that this feature of the act of 1836 remains 
in full force. The closing language of the 
clause quoted is not regarded as m conflict 
with the construction insisted on. The 
words are, "in all cases every such patent shall 
be limited , " &c . What is intended by ' ' every 
iuch patent?" Undoirbtedly the kind of 
patent spoken of in the preceding part of 
the section, and no other, to wit : a patent 
based on an invention for which letters pat- 
ent had been issued in a foreign country more 
than six months before the filing of the ap- 



plication here. It may be very well supposed 
that Congress might consider six months as 
too small a fraction of time to require its in- 
troduction as a part of the lifetime of the 
patent, and would, therefore, leave it to be 
embraced or not, at the option of the appli- 
cant ; while to guard against abuse, if the 
period were longer, the inclusion of the 
whole might be consistently and properly 
exacted. 

The novelty and original patentability ©f 
this invention, as well as its great public 
utility, are fully established by the report of 
the examiner and by the depositions on file. 
But two leading questions, therefore, remain 
to be disposed of : 

1st. Has the applicant used due diligence 
in developing his invention and in introducing 
it into public use ? 

2d. Has he, from the use and sale of the 
invention, received a reasonable remunera- 
tion for the time, ingenuity, and expense 
bestowed upon the same, and the introduc- 
tion thereof into use ? 

Upon the first point, the testimony alike 
of the applicant and of the contestants is 
concurrent and conclusive. From the first 
moment that the conception entered his mind 
until his complete success — embracing a pe- 
riod of from sixteen to eighteen years — he 
applied himself unceasingly and enthusiasti- 
cally to its perfection and to its introduction 
into use, in every form that his fruitful genius 
could devise. So intensely were his faculties 
concentrated upon it, that he seems to have 
been incapable of thought or of action upon 
any other subject. He had no other occupa- 
tion, was inspired by no other hope, cherished 
no other ambition. He carried continually 
about his person a piece of India rubber, and 
into the ears of all who would listen he poured 
incessantly the story of his experiments and 
the glowing language of his prophecies. He 
was, according to the witnesses, completely 
absorbed by it, both by day and night, pur- 
suing it with untiring energy and ^vith almost 
superhuman perseverance. Not only were the 
powers of his mind and body thus ardently 
devoted to the invention and its introduction 
into use, but every dollar he possessed or 
could command through the resources of his 
credit, or the influences of friendship, was 
uncalculatingly cast into that seething cal- 
dron of experiment which was allowed to 
know no rei^ose. The very bed on which his 
wife slept, and the linen that covered his 
table, were seized and sold to pay his board ; 
and we see him with his stricken household 
following in the funeral of his child on foot, 
because he had no means with which to hire 
a carriage. His family had to endure priva- 
tions almost surpassing belief, being fre- 
quently without an article of food in their 
house, or fuel in the coldest weather ; and 
i2.deed it is said that they could not have 



lived through the winter of 1839 but for the 
kind offices of a few charitable friends. They 
are represented as gathering sticks in the 
woods and ou the edges of the highwaj's, 
with which to cook their meals, and digging 
the potatoes of their little garden before they 
were half grown, while one of his hungry 
children, in a spirit worthy of his father, is 
heard expressing his thanks that this much 
had been spared to them. We often find 
him arrested and incarcerated in the debtor's 
prison ; but even amid its gloom his vision of 
the future never grew dim, his faith in his 
ultimate triumph never faltered. Undis- 
mayed by discomfitures and sorrows which 
might well have broken the stoutest spirit, 
his language everywhere, and under all cir- 
cumstances, was that of encoiiragement and 
of a profound conviction of final success. 
Not only in the United States did he thus 
exert himself to establish and apply to every 
possible use his invention, but in England, 
France, and other countries of Europe, he 
zealously pursued the same career. In 1855 
he appeared at the World' s Fair in Paris, and 
the golden medal and the Grand Cross of the 
Legion of Honor were awarded to him as the 
representative of his country's inventive ge- 
nius. Fortune, however, while thus caress- 
ing him with one hand, was at the same 
moment smiting him with the other; for we 
learn from the testimony that these brilliant 
memorials passed from the Emperor and 
reached their honored recipient, then the 
occupant of a debtor's prison among stran- 
gers and in a foreign land — thus adding yet 
another to that long sad catalogue of public 
benefactors who have stood neglected and 
impoverished in the midst of the waving 
harvest of blessings they had bestowed upon 
their race. Throughout all these scenes of 
trial, so vividly depicted by the evidence, he 
derived no support from the sympathies of 
the public. While the community at large 
seem to have looked on him as one chasing 
a phantom, there were times when even his 
best friends turned away from him as an idle 
visionary ; and he was fated to encounter on 
every side sneers and ridicule, to which each 
baffled experiment and the pecuniary loss it 
inflicted, added a yet keener edge. The mer- 
cenary naturally enough pronounced his ex- 
penditures, so freely made, culpably wasteful ; 
the selfish and the narrow-minded greeted 
the expression of his enlarged and far-reach- 
ing views as the ravings of an enthusiast; 
while it is fair to infer from the depositions 
that not a few of the timid and plodding, who 
cling, tremblingly apprehensive of change, 
to the beaten paths of human thought and 
action, regarded him as wandering on the 
very brink of insanity, if not already pursu- 
ing its wild and flickering lights. Such in 
all tinies has been the fate of the greatest 
spirits that have appeared on the arena of 



human discovery, and such will probably 
continue to be the doom of all whose stalwart 
strides carry them in advance of the race to 
which they belong With such a record of 
toil, of privation, of courage, and of perse- 
verance in the midst of discouragements the 
most depressing, it is safe to affirm that not 
only has the applicant used that due diligence 
enjoined by law, but that his diligence has 
been, in degree and in merit, perhaps with- 
out a parallel in the annals of invention. 

Before entering upon an examination of 
the second leading question, several prelimi- 
nary issues raised by the contestants must 
be met and decided. 

The account of expenditures and receipts 
originally presented, it is admitted, was too 
general in its terms to be accepted as a com- 
pliance with the requirements of the statute. 
Hence subsequently in April an additional 
or amended account was offered, which, in 
consequence of the absence of the applicant 
in England, was not sworn to by him xmtil 
the 23d of that mouth, and was not filed in 
this office, as thus verified, until the 8th May. 
This amended statement was intended, not 
as a substitute for the original, but as a cor- 
rection of certain inaccuracies which had 
crept into it, and as furnishing the details 
which law and usage demand. It is objected 
that it should not be considered, because, 
when first lodged here, it was without the 
oath of the applicant, and because, when 
that oath was appended on the 8th May, it 
was too late for the contestants to take their 
rebutting testimony. It will be observed 
that there is nothing in the circumstances 
attending this delay calculated to excite a 
suspicion of a desire on the part of the ap- 
plicant to suppress the truth by stifling in- 
quiry ; and it must be also borne in mind, 
that, although there is a rule of this office 
on the subject, the statute is silent as to the 
iime when the account shall be filed. It is 
true that it must be "under oath," and the 
oath of the patentee was no douljt contem- 
plated by the framers of the law , but it ig 
also true that cases have arisen in which that 
oath was necessarily and properly dispensed 
v\'ith, as when the patentee had died or 
become insane. Other cases may well be 
imagined in which the oath of parties en- 
tirely disinterested and having a thorough 
knowledge of the subject-matter would be 
more satisfactory to the judicial mind than 
that of the patentee. The amended account 
was, as early as the 8th of April, verified by 
the oaths of a number of disinterested wit- 
nesses professing an acquaintance with the 
transactions to which it relates ; and this is 
claimed to be a substantial compliance with 
the statute. Assuming that the contestants 
were not bound to take rebutting testimony 
until after the account had been sworn to by 
the applicant, yet they had notice of the ex- 



4 



istence and character of that account, through 
a copy served on them as early as the 20th 
April, and this was sufficient to put them 
upon inquiry. Being thus distinctly apprised 
of what it was proposed to prove, they could 
have occupied themselves in discovering such 
evidence as might exist in their favor, and 
in taking at least the preliminary steps to 
the examination of the witnesses. The time 
for taking the proof having been extended, 
there was at least sixteen days, between the 
8th and 24th of May, allowed for assailing 
the accormt by coimteracting testimony; and 
we are warranted from the record in pre- 
suming that this time was, with the greatest 
zeal and activity, devoted to the taking of 
depositions, and that all the witnesses who 
could be found, having knowledge of facts 
deemed important for the contestants, and 
who were willing to depose, were examined. 
It is true that Mr. Cozzens, in his deposition, 
expresses the opinion "that there had not 
been anything like enough time since the 
filing of the applicant's petition and state- 
ment to properly prepare an opposition there- 
to." Waiving the obvious criticism upon 
this language, it is a complete answer to say, 
that the name of no witness is given whom 
the contestants were prevented from exami- 
ning for want of time, nor is any fact ma- 
terial to them alleged to exist and to be 
susceptible of proof, but which they were 
denied an opportunity of establishing. In 
the absence of any such specific averment, it 
is impossible to decide, in the language of a 
rule of this office, that ' ' a substantial injury 
has been wrought to the party raising the 
objection;" and hence, according to that 
rule, such objection cannot prevail on the 
final hearing. When a party frankly avows 
that he has committed an error in a judicial 
oath, and asks the privilege of correcting it 
under the same sanctions, a tribunal whose 
mission is the ascertainment of truth should 
rather encourage him to make such cor- 
rection than rebuke him for an ofi'er to do 
so. 

Another question to be answered before 
proceeding to the main inquiry is, whether, 
in determining the adequacy of the remune- 
ration received by the applicant, the receipts 
of his assignees and licensees — admitted to 
amount to many millions — should be charged 
to the patent. The first impression of my 
mind was favorable to the position taken by 
the contestants ; but a more critical examina- 
tion of the statute has led me to an opposite 
conclusion. At the time of the passage of 
the act of 1836, it was the universal custom 
of inventors to sell and assign the rights se- 
cured to them by their patents ; and this 
course on their part has been constantly con- 
templated and sanctioned by law. Hence 
the statute declares that if the ' ' patentee ' ' 
shall fail, from ' ' the use and sale of his in- 



vention, ' ' to realize a reasonable remunera- 
tion, he shall be entitled to an extension. 
The law, in its enactments, is generally found 
to be a faithful reflection of the actual life of 
the world. It was well known that inventors, 
as a class, were particularly liable to be over- 
reached in their contracts, and to be driven 
to dispose of their inventions at ruinous rates, 
under the pressure of poverty, and often be- 
fore their utility had been fully demonstrated. 
Hence the generous guarantee was given 
them that if from such "sales," no matter 
how made, and from such "use" as they 
might choose to make of their inventions, 
they were unable to secure a reasonable com- 
pensation, their monopoly should be further 
extended . There is not the remotest allusion 
to their assignees and licensees ; and, as the 
reason of the enactment does not reach them, 
it would be an unsound principle of construc- 
tion which should embrace them by impli- 
cation. A further reason whj^ they should 
not be thus embraced is found in the fact 
that a very large part of the profits of these 
assignees, who are generally manufacturers, 
is the product of their owo. capital and enter- 
prise in association with the invention, and 
could not therefore be properly charged to 
its account in this proceeding. Assignees 
and licensees constitute a very numerous 
class, scattered throughout the length and 
breadth of the land, and their profits from 
inventions must be regarded as the profits of 
that great public of which they are so im- 
portant a part. Tlie very large sums which 
they are alleged, by all the witnesses who 
have spoken on the subject, to have made 
from this invention, is but another of the 
ever-multiplying proofs of its extraordinary 
value to the world ; for it is safe to conclude 
that the consumers of the fabrics have been 
equally benefited with the manufacturers 
who produced them. If, on an application 
for an extension, the patentee were charge- 
able with the receipts of his assignees and 
licensees, it would then follow that he would 
be bound to exhibit them in his accoimts — 
a manifest impossibility, it is scarcely neces- 
sary to say, in the great majority of cases. 

The first step in determining the suffi- 
ciency of the remuneration is, to ascertain, as 
far as practicable, the amount of the appli- 
cant's receipts and expenditures in connexion 
with the invention. The apparently dis- 
crepant and informal character of the ac- 
counts filed has provoked much severity of 
criticism and some denunciation on the part 
of counsel. It is admitted that they have 
not the precision and symmetry which be- 
long to the products of the counting-room, 
and which might have been imparted to 
them by the applicant, had he been a mer- 
chant's clerk, instead of the brilliant and 
impulsive genius that he is. In explanation 
of the generality and uncertainty by which 



it is insisted they are marked, it is in proof 
that the applicant never kept any books or 
memoranda from v.diich more reliable state- 
ments could be prepared. In this respect 
his course of life has been in entire harmony 
with that of the class to which he belongs. 
Inventors and other men of high creative 
genius have ever been distinguished for a 
total want of what is called ' ' business 
habits." Completely engrossed by some 
favorite theory, and living in the dazzling 
di'eams of their own imagination, they scorn 
the counsels and restraints of worldly thrift, 
and fling from them the petty cares of the 
mere man of commerce as the lion shakes a 
stinging insect from his mane. The law, in 
its wisdom, takes cognizance of human 
character, and deals with men and with classes 
of men as it finds them. It seems, in this 
instance, to have assumed, and justly, that, 
if we would have the magnificent creations 
of genius, we must take them with all those 
infirmities which seem as inseparable from 
them as spots are from the siin. Hence the 
statute does not require that the accounts of 
inventors shall have that formality and that 
severe exactitude which might well have 
been claimed of a merchant, with his ledger 
open before him. All that is insisted on is 
that the statement furnished shall be ' ^suffi- 
ciently in detail to exhibit a true and faithful 
account of loss and profit in any manner ac- 
cruing to him from and by reason of said 
invention." It is manifest that it is to the 
results — which indicate "loss and profit" — 
rather than the minute elements of the 
transactions which form the subject of the 
account, that the law looks. The applicant's 
statement, as amended, appears to have been 
compiled with the most laborious care, and 
from every source of information accessible 
to him or his attorneys. It is regarded as 
fully conforming to the letter and spirit 
of the statute. The principal discrepancy 
between the original and amended statement 
is satisfactorily explained. The applicant 
held at the same moment three patents for 
processes connected with the manufacture of 
India rubber, viz : that of Chafl:ee, that of 
Hayward, and that for his own vulcanizing 
process. In all his contracts, he transferred 
these three patents together, making no 
designation, in the body of the assignments, 
of the estimate placed upon either of them 
separately. In his original statement, he 
inadvertently charges to his own patent the 
whole of the receipts from this source ; in 
his amendment, he sets the Chaffee and Hay- 
ward patents down as properly chargeable 
with one-fourth of the proceeds of such sales, 
and makes, accordingly, a corresponding de- 
duction from his exhibit of receip'^s. The 
langiiage of his first statement, properly in- 
terpreted in the light of the assignments 
themselves, justified this step. Whatever 



those patents may have cost him, they were 
his property, and it was due to truth and to 
the claim now under consideration that their 
actual value should have been ascertained. 
The witnesses who speak of them prove con- 
clusively that the applicant has rather under 
than overrated them, which relieves him 
from all imputation in the matter. 

What, then, has been the amount of the 
applicant's remuneration? His account, as 
amended, exhibits S162,894 09 of receipts, 
and $129,535 46 of expenditures — thus show- 
ing a profit of $.33,358 63. Numerous iatel- 
ligent and unimpeached witnesses having 
intimate relations with the applicant, and 
acquainted v/ith his business affairs, have 
deposed in reference to this account ; and 
their testimony, without an exception, pow- 
erfully supports its truth. Considering the 
remoteness and complicated character of the 
transactions, the statements in this paper are 
illustrated and sustained with singular force. 
The rebutting evidence assails directly no 
item either of the receipts or expenditures, 
but consists of the opinions and conjectures 
of a large number of witnesses who clearly 
had no means of knowing either the truth 
or falsehood of the matters set forth in the 
accoimt. They profess to believe that the 
applicant could not have expended such large 
sums in his experiments, because he was poor ; 
and this is the sole basis of almost every 
opinion expressed on the subject. Had these 
witnesses known — what this record makes 
so apparent — the overwhelming debts which 
have hung over the applicant throughout his 
long and self-sacrificing career, and many of 
which still bear him down, his enormous 
outlays would not have been to them so im- 
penetrable a mj'stery. The very elaborate 
report of the examiner, after a severe scrutiny 
of the expenditures and receipts as exhibited, 
restates the account, and, in doing so, in- 
creases the applicant' s profits to $114,128 09. 
In aniving, however, at this conclusion, he 
has excluded two items of expenditure which 
1 am well satisfied should have been retained. 
The first is for $13,310, and is not allowed 
because for disbursements occmring before the 
invention or discovery was made. The act 
of Congress directs an inquiry into the " loss 
and profit in any manner accruing to him (the 
Inventor) from and by reason of said inven- 
tion." Whether we consult the letter or 
reason of the law, I entertain no doubt but 
that expenditru'es made in the progress of 
experiments preceding the invention, but look- 
ing to it, are as clearly chargeable to the 
patent as those made afterwards, either in 
perfecting it or introducing it into use. The 
other item is for $46,084 46, as set forth in 
exhibit No. 2, and I am at a loss to perceive 
any sufficient reason for its rejection. The 
applicant alleges expressly in his sworn state- 
ment that the whole of this sum ' ' was ex- 



pended by him in perfecting his said inven- 
tion and bringing the same into use." De 
Forest, who advanced the money, and wlio 
holds tlie drafts specified in the exhibit, 
when interrogated on the point, says ex- 
plicitly that it was applied by the applicant 
to " experiments in developing his improve- 
ments and new applications, and branches of 
the India rubber manufacture;" and tliis 
statement is uncontradicted. The fact averred 
and not denied, that De Forest has not been 
reimbursed these advances, which constitute a 
subsisting debt on the part of the applicant, 
furnishes no argument against their being 
charged to the patent. All moneys expended 
upon the invention and its introduction into 
use are properly so chargeable, no matter 
whence or how obtained. Restoring, then, 
these items, and adopting the other correc- 
tions of the examiner, tliere will still remain 
to the credit of the invention a clear profit of 
$54,733 63 The applicant, in his amended 
statement, acting under the promptings of 
the same high sense of honor which led him 
to satisfy an indebtedness of $35,000 from 
which he had been discharged by a certificate 
of bankruptcy, shrinks from debiting the 
patent with any expenditures the particulars 
of which he cannot, recall with some degree 
of certainty, but, while doing so, imhesitat- 
ingly expresses the belief that they were 
quite as large as the sums set forth in gross 
in the first account. It is probable — indeed, 
in view of the whole testimony, it is my lirm 
conviction — that if it were possible to extract 
from the tangled mazes of the multifarious 
and now half-forgotten transactions connect- 
ed with the invention all the moneys ex- 
pended therein, it would be found that, 
instead of there being a balance to its crecUt, 
the balance would be on the other side. I 
am justified in arriving at this conclusion 
from the fact, that, although the aj^plicant 
has had no other occupation or business, yet, 
instead of having now in hand this sum of 
$54,733 63, he is admitted to be penniless 
and overwhelmed with debt — and this, too, 
notwithstanding his life is shown to have 
been temperate, frugal, and in all respects 
self-denying. Being reimbursed his actual 
"expenses," is this sum of $54,733 63 a 
reasonable remuneration to the applicant for 
the ' ' INGENUITY and time ' ' bestowed on the 
invention and the introduction thereof into 
use? 

An earnest endeavor has been made to 
depreciate the ingenuity displayed in the 
invention, by representing the discovery to 
have been the result rather of ' ' accident ' ' 
than of scientific investigation. As early as 
1834-'5, Mr. Goodyear seems to have formed 
a most exalted estimate of the capabilities, 
as a material for manufacture, of the gum 
known as caoutchouc, or India rubber. This 
gum had been previously eltensively em- 



ployed in the fabrication of a variety of 
articles ; but, owing to their indifferent 
quality, all concerned in these enterprises, 
as well as in those which followed for a series 
of years afterward, were involved in bank- 
ruptcy and ruin. The fabrics thus made 
could not keep the market, because they 
were found to grow rigid under the influence 
of cold, and to soften and become sticky 
under that of heat, while they rapidly de- 
composed when brought into contact with 
persphation and the animal oils. The ap- 
plicant was thoroughly convinced that these 
qualities, which had proved so disastrous to 
to the trade, could be removed, and he set 
himself resolutely to woik to ascertain the 
process for accomplishing this lesult. Sul- 
phur had already been advantageously com- 
bined with India rubber by Hay ward, so that 
the discovery had been approached to it^ very 
verge. The step, however, which remained 
to be taken, short as it was, was indispensa- 
ble, and without it all those which had pre- 
ceded it would have been unavailing. Sci- 
ence could afford but little assistance in the 
inquiry ; for, as the event proved, the most 
potent element in the process was too subtle 
to be disclosed bj"- the severest chemical 
analysis. The applicant had therefore to 
pursue the investigation gropingly ; but he 
persisted in it with an ardor and a courage 
which nothing could abate or daunt. His 
aim was definite, his conviction as to its 
attainability complete. As one who searches 
for a hidden treasure in a field where he 
knows it is to be found, so pursued ho his 
explorations in quest of this secret. He 
sought it on the right hand and on the left, 
by day and by night, in the midst of ceaseless 
toil and lavish expenditure, and by the light 
of every form of experiment which his most 
fertile genius and daring spirit could suggest. 
He became completelj' master of everything 
known m regard to the properties of the 
material which it was his ambition to im- 
prove ; and so thoroughly was he imbued 
with the soul of his inquiry, and so intensely 
•quickened was his vigilance, that no phe- 
nomenon, however minute, could meet his 
eye, no sound, however faint, could fall upon 
his ear, without his at once detectiag and 
appreciating its bearing upon the great prob- 
lem whose solution he was seeking. From 
four to five years were passed in these unre- 
mitted labors, when an incident occurred 
which at once revealed the long-sought 
truth. And it is a singular coincidence, that 
the spark of light yielded by this incident was 
elicited by a collision, so to speak, the result 
of that intense zeal which, so far as health 
and fortune were concerned, had been the 
consuming fire of his life. In one of those 
animated conversations so habitual to him 
in reference to his experiments, a piece of 
India rubber combined with sulphur, which 



he held in his hand as the text of all his dis- 
courses, was by a violent gesture thrown into 
a burning stove near which he was standing. 
When taken out, after having been subjected 
to a high degree of heat, he saw — what, it 
may be safely affirmed, would have escaped 
the notice of all others — that a complete 
transformation had taken place, and that an 
entirely new product — since so felicitously 
termed "clastic metal" — was the conse- 
quence. When subjected to further tests, 
the thrilling conviction burst upon him that 
success had at length crowned his efforts, 
and that the mystery he had so long wooed 
now stood unveiled before him. His history 
in this respect is altogether parallel with that 
of the greatest inventors and discoverers who 
have preceded him. The lamp had swung 
for centuries in the Cathedral of Pisa, but, 
of the thronging multitudes who worshijiped 
there, none had heeded the lessons which it 
taught. It was reserved for the profound 
and observant intellect of young Galileo to 
extract from its oscillations the true laws of 
the pendulum, which led to the creation of 
an infallible measure of time. The theory 
of imiversal gravitation loses nothing of its 
grandeur or value because suggested by the 
falling of an apple from the tree. In all 
lands, by teeming millions, this phenomenon 
had been observed; but to none had it impart- 
ed instruction — to none had it spoken of that 
wonderful secret which lurked beneath its 
simple features. At length its "still small 
voice" fell upon the delicate and apprecia- 
tive ear of one whom it startled into inquiry. 
The light thus afforded, to which all had 
been blind, was indeed dim and twinkling ; 
but, following its guidance as one who traces 
back the dawn, the great Newton soon 
plunged into the full-orbed splendors of a 
discovery confessedly the most brilliant which 
has gilded and ennobled the annals of science. 
On all the hearth-stones of the civilized 
world, for thousands of j'ears, the kettle 
had boiled and lifted its lid by the expansive 
power of its steam ; yet for none had this 
seemingly trite and ever-recurring incident 
been significant — to none had it announced 
that measm'eless power of which it was the 
humble but distinct exponent. At length 
the movement caught the eye of a lonely 
student of nature, then a prisoner in the 
Tower of London ; and in the soil of his pro- 
lific mind it proved the rapidly expanding 
germ of that steam engine whose triumphs 
have changed the social, political, and com- 
mercial aspects of the globe. So India rub- 
ber, in combination with sulphur, may by 
accident have been exposed to a high degree 
of heat often before without attracting the 
attention of any ; and it is safe to allege that 
it might have been thus exposed a thousand 
times afterwards without the world's having 
been, the wiser or wealthier for it. The 



thorough self-culture and training of the 
applicant and his unwearied researches, pre- 
pared him at once to seize upon, to compre- 
hend, and embody in a practical fonn, the 
truth he sought, the moment it presented 
itself, no matter how dimly, to him. This 
was his merit- -the same in kind with that 
of Ihe most illustrious inventors who have 
appeared in the world, and by that of but 
few of them surpassed in degree. It is a 
figure of speech- -but an exalted mode of ex- 
pression — which assigns to man any part in 
the work of creation. In his very best estate 
he is but a ministering priest at her altar ; 
and when he has reached the highest walk 
in the drama of intellectual power to which 
his feeble steps can at^cend, he is still but an 
humble translator of the languages of nature. 
It is a fact which singularly increases the 
credit due to this inventor, that the very 
path in which he finally achieved success 
was the one which the experience of the past 
had taught him to shun. A low degree of 
heat had been been applied to a combination 
of India rubber and sulphur, and it had 
melted under it ; so that heat — hte increased 
intensity of which consummated the dis- 
covery — was the very element which he had 
felt himself admonished to avoid. The dis- 
covery being made, the applicant soon there- 
after added white lead to the combination, 
which rendered it complete ; and, assuming 
that his mission was but begun, he bravely 
bent himself to the task of surmounting the 
obstacles which still frowned tipon him on 
every side. These obstacles, so graphically 
sketched in the testimony, seem to have been 
almost unprecedented. Capitalists shrunk 
away from the discovery, so confidently an- 
nounced, as a chimera ; and manufacturers, 
who had suffered so deeply by the India mb- 
ber business, denied it their confidence. Its 
practicability had to be demonstrated by a 
long series of illustrations, which the total 
want of experience rendered protracted and 
often ruinously expensive. Every inch oc- 
cupied in the enlarging field of its usefulness 
had to be conquered by many sacrifices, while 
of the Protean-formed applications to which 
it was destined to attain, there was not one 
that did not involve an outlay of treasure, of 
toil, and high artistic skill. All these, from 
the beginning to the present hour, have been 
bestowed — unceasingly bestowed — upon it ; 
arrd as the fruits of all these have been, and 
are still being, reaped by the public, the ap- 
plicant is entitled to remuneration for them. 

Has the applicant been remunerated for 
the TIME which he has devoted to this inven- 
tion and to its introduction into use ? 

It is extremely difficult to estimate in the 
coin of dollars and cents the worth of eight- 
een years of the prime of human life— espe- 
cially so, when that life is one of lofty genius, 
of indomitable enterprise, and of stainless 



8 



virtues. It is, however, about that period of 
precisely such a life, that has been conse- 
crated to the pursuit and development of this 
discovery ; nor would a shorter period of time 
have sufficed for the arduous and perplexing- 
task. This declaration may be made with 
the more emphasis, because, in all the vol- 
umes of testimony filed, there is not one 
word found tending to its contradiction. 
Throughout those long and toilsome years, it 
is apparent that there has been no compro- 
mise with the suggestions of avarice or with 
the claims to self-indulgence and ease. It 
has been already fully shown that the a]3- 
plicant's fortune, his health, the comforts of 
his family, the freshness of his early and the 
patient energies of his later manhood, have 
all been unhesitatingly melted down in the 
crucible of his inquiry ; and he is now seen 
tottering towards that grave which must soon 
open in his path, with nothing left of the 
heroic and athletic man but what remains of 
the maimed and scarred soldier on the battle 
field — a wreck which every great and gen- 
erous people have taken fondly to their 
bosom. The time of the indolent, the sel- 
fish, the dissolute, and the dull, is little worth 
to a world which they rather cumber than 
bless by their presence ; biit the time of the 
gifted, the brave, the philanthropic, and un- 
conquerable sons of genius, has for mankind 
a value which we should but feebly express 
in the arithmetic of dollars. But while we 
may have no means by which to measure 
with unerring accuracy the intrinsic worth of 
the ingenuity and time which have been ex- 
pended, and cannot by any analysis weigh or 
compute their ingredients, there remains to 
us one standard by which a proximate esti- 
mate at least may be reached — that is, the 
results which have been, produced. What that 
time and ingenuity have yielded to the public 
is the true test of their value, alike to that 
public and to the inventor ; for what the for- 
mer have received the latter must, upon 
every principle of sound logic, be held to 
have parted with. What, then, have been 
the results of the discovery and introduction 
into use of the vulcanizing process? The 
testimony is very full upon this point. We 
learn that through this instrumentality a 
large foreign commerce has been created in 
the raw material, and an inland trade in the 
India-rubber fabrics amounting to between 
four and five millions of dollars annually ; 
that extensive India-rubber manufactories 
have grown up, giving profitable investment 
to some seven millions of dollars of capital, 
and active employment to some ten thousand 
operatives ; and that a large portion of these 
fabrics are intimately connected with human 
comfort and the preservation of human life. 
Not to enumerate more of the articles pro- 
duced by this process, it would be hazarding 
nothing to say that the shoes and wearing 



apparel perfected by it, and now cheaply and 
abundantly made, and almost imiversally in 
use, have saved thousands from a premature 
death, and may save millions in the ages 
which are to come. In the presence of these 
vast and still expanding achievements of this 
invention, the criticisms which have been 
made upon the applicant's accounts, as though 
they were some petty grocer's bill, shrink, 
into insignificance, and, indeed, can scarcely 
be listened to without a blush. We have, 
however, a yet more definite basis on which 
to rest our judgment — the testimony of Hay- 
ward and Haskins. Both have long been 
India-rubber manufacturers under the vul- 
canizing process, and the former made ' the 
valuable discovery of combining sulphur with 
the gum, for which a patent was granted to 
him. Their depositions are marked by frank- 
ness, and leave no doubt of their perfect ac- 
quaintance with this great interest in all its 
ramifications and aspects. Hayward says 
that the vulcanizing process for the next 
seven years would be worth to the public 
one million of dollars ; if so, it should have 
been worth two millions for the last fourteen 
years. Haskins does not hesitate to estimate 
the process at "many millions of dollars." 
It should be observed that the evidence of 
the contestants does not reduce these esti- 
mates. It is not possible to escape from the 
conclusion to which statements so emphatic, 
and coming from sources so fully entitled to 
credit, lead us. If, then, this process is 
worth two millions of dollars, the applicant 
has received but a little more than one-for- 
tieth part of the remuneration which he was 
entitled to claim. 

It has been assumed, as a means of avoid- 
ing the force of these estimates, that the ap- 
plicant is entitled to receive from the public, 
not what the invention is now worth, devel- 
oped and established as it is, hvA what it was 
worth when the patent issued. This view 
has been urged with much persistence and 
plausibility ; but it has not impressed me as 
liberal or sound When the invention came 
timid and struggling into existence, meeting 
in every quarter with scoffs and distrust, had 
it been offered for sale in the market, it 
would probably have commanded a few thou- 
sand dollars — possibly less. But to say that 
its value is to be measured by what it was 
then considered to be worth would be to de- 
termine that the character of the tree is to 
be judged rather by the green than by the 
ripe fruit found upon its branches The 
present expanded and prosperous condition 
of the invention is mainly owing to the ge- 
nius and unceasing struggles of the appli- 
cant, and he may justly reap what he has 
sown and so diligently cultivated. In the 
adjustment of machinery to accomplish the 
ends so distinctly pointed out by the inven- 
tor and in the manipulatfons of the gum and 



9 



treatment of the fabrics in the various stages 
of their manufacture, it is admitted tliat 
many improvements have been made by 
skilful mechanics and operatives, and these 
have their utility and importance ; but to 
allow such labors to rival or depreciate the 
claims of the applicant, would be to rank 
the simple ploughman of the fields -ndth that 
sublime and beneficent Providence which cre- 
ates alike the soil out of which the harvest 
springs and the sunshine and the shower by 
which it is nurtured and matured. 

Another and most potent reason why this 
patent should be extended is found in the 
acknowledged fact that the j)ublic have not 
kept the faith which they plighted with the 
applicant when he covenanted to surrender 
to them a product which was, in effect, the 
concentrated essence of the physical and in- 
tellectual energies of his entire life. That 
public stipulated with him that he should 
peacefully enjoy for fourteen yeai-s the mo- 
nopoly created by his patent, and, had he 
been permitted to do so, he would no doubt 
long since have realized an ample remunera- 
tion ; but, so far from this having been the 
case, no inventor probably has ever been so 
harrassed, so trampled upon, so plundered by 
that sordid and licentious class of infringers 
known in the parlance of the world, with no 
exaggeration of phrase, as "pirates." The 
spoliations of their incessant guerilla warfare 
upon his defenceless rights have unquestiona- 
bly amounted to millions. In the very front 
rank of this predatory band stands one who 
sustains in this case the double and most 
convenient character of contestant and wit- 
ness ; and it is but a subdued expression of my 
estimate of the deposition he has lodged to 
say that this Parthian shaft — the last that he 
could hurl at an invention which he has so 
long and so remorselessly pursued — is a fitting 
finale to that career which the public justice 
of the country has so signally rebuked. 

Important as are to the parties to this is- 
sue the immediate consequences bound up 
with it, they are insignificant indeed as com- 
pared with the value to the public of the 
principle involved. From the very founda- 
tion of this government, it has been its set- 
tled policy to secure a just reward to all 
inventors ; and it is to the inflexible main- 
tenance of this policy that we are indebted 
for the unparalleled advancement which, as 
a people, we have made in the useful arts. 
All that is glorious in our past or hopeful 
in our future is indissolubly linked with 
that cause of human progress of which in- 
ventors are the preux chevaliers. It is' no 
poetic translation of the abiding sentiment 
of the country to say, that they are the true 



jewels of the nation to which they belong, 
and that a solicitude for the protection of 
their rights and interests should find a place 
in every throb of the national heart. Sadly 
helpless as a class, and offering in the glit- 
tering creations of their own genius the 
strongest temptations to unscrupulous cu- 
pidity, they, of all men, have most need of 
the shelter of the public law, while, in view 
of their philanthropic labors, they are, of all 
men, most entitled to claim it. The schemes 
of the politician and of the statesman may 
subserve the purposes of the hour, and the 
teachings of the moralist may remain with 
the generation to which they are addressed ; 
but all these must pass away, while the 
fruits of the inventor's genius will endure as 
imperishable memorials, and, surviving the 
wreck of creeds and systems, alike of politics, 
religion, and philosophy, -will diffuse their 
blessings to all lands and throughout all 
ages. 

However much the seeming perplexity in 
the applicant's accounts may expose him to 
cavil and to that vituperation which is so 
ready a coinage of professional zeal, and how- 
ever short some of the points in the case may 
fall of that complete elucidation which could 
have been desired, there is one fact estab- 
lished beyond all controversy, and which 
stands out from this record with painful 
prominence. . At the close of all his toils- 
and sacrifices, and of the humiliations he 
has been called on to endure, this public 
spirited inventor, whose life has been worn 
away in advancing the best interests of man- 
kind, is found to be still poor, oppressed with 
debt, and with the winter of age creeping 
upon his shattered constitution. It is per- 
fectly manifest that this is in no degree the 
result of vice or of improvidence on his part, 
but it is an inexorable consequence of the 
impoverishing experiments inseparable from 
the prosecution of his great enterprise, and 
of that prolonged and exhausting strife in 
which unscrupulous men have involved him. 
He now begs of that country to which the 
energies of his manhood have been so freely 
and so faithfully given, that he may be al- 
lowed to enjoy for a few years longer that 
precarious protection which om most feeble 
and imperfect laws extend to the fruits of in- 
tellectual labor ; and were the appeal denied, 
I feel that I should be false to the generous 
spirit of the patent laws, and forgetful of the 
exalted ends which it must ever be the crown- 
ing glory of those laws to accomplish. 

The patent will therefore be extended for 
seven years from the 15th June, 1858. 
J. HOLT, 

Commissioner. 



'•I 



a 



^. .^ .-.%^.-. ^.^^/ ^.^', ^^^^^. 




